Experts: Detainees entitled to review

February 04, 2002|By Vincent J. Schodolski, Tribune staff reporter.

LONDON — Whether the 158 Al Qaeda and Taliban fighters being held at Guantanamo Bay Naval Station in Cuba should be considered prisoners of war remains in dispute among international law experts in Europe and the United States.

However, most agree that the detainees are entitled to a review of their status by a U.S. military tribunal.

That view, which appears to be in line with an opinion expressed last month by Secretary of State Colin Powell, is supported by the rules of the Geneva Convention, the experts said.

"Powell is right in that there has to be a legal means of making the determination that is more transparent than presidential fiat," said Jonathan Stevenson, a fellow at London's International Institute for Strategic Studies.

While some of the experts disagree about what the ultimate status of the detainees will be, there is agreement that the U.S. is not complying with international law.

"It is a routine matter for the United States to conduct these tribunals," said Derek Jenks, a professor of international law at St. Louis University.

Jenks, who worked as an adviser to the International War Crimes Tribunal that was established at The Hague in the wake of the collapse of Yugoslavia, said the U.S. military conducted more than 1,200 such hearings during the Persian Gulf war.

"The issue is that their status needs to be determined by a competent U.S. tribunal, or court," said Richard Dicker, director of the international justice program for Human Rights Watch. "They are owed due process as to whether they are POWs or not."

Dicker said the issue at hand is the requirement for a review, not the ultimate status. "This means that the U.S. is in contravention of the Geneva Convention," he said.

On Friday, the Lawyers Committee for Human Rights lent its voice to those calling for the administration to observe the convention. In a letter to President Bush, the New York-based group said compliance would allow the U.S. to detain "dangerous combatants" while demonstrating "unambiguously America's commitment" to international law.

Rights before cases heard

Under the terms of the convention, the experts said, some of those being held at Guantanamo Bay have the right to be presumed prisoners of war until their cases are considered.

Others might not have that right and would be considered civilians under the control of a country that is not their native country that is party to a war. Such individuals would be entitled to "humane" treatment and respect for internationally accepted human rights.

Beyond that, however, there is wide room for legal interpretation, some of the experts said.

"International law is always more political," said James Sweeney, a law professor at the University of Newcastle upon Tyne. "Custom is an important part of international law."

Sweeney and others agree that once the required Geneva Convention review is done, most of those being held at Guantanamo probably would not qualify as prisoners of war.

"At first glance, the criteria that would govern these people probably favor their not being prisoners of war," Sweeney said.

He added that the Geneva Convention sets out specific criteria for determining what constitutes a combatant. One such requirement is that they have to be commanded by someone who is responsible for their actions. They also must carry their arms openly and wear identifying insignia.

"To be considered prisoners of war they have to be conducting their campaign under internationally accepted rules of law," Sweeney said. "I do not think the Al Qaeda and Taliban fighters would qualify on that score."

POW status offers protections

U.S. officials reportedly have been interrogating the detainees in Cuba, presumably about links to international terrorism. Any move to classify those people, and any future detainees, as prisoners of war would give them legal protections governing what questions they would be expected to answer.

As POWs they would be required to provide only name, rank and serial number, if they had them. POW status also would provide a broader set of appeals of any charges that were leveled against them, experts said.

Despite those limitations, there are some who think the U.S. has made a mistake in not declaring the detainees prisoners of war.

"The U.S. has a big problem figuring out what to do [legally] with these guys," said Daniel Moriarity, a professor at Albany Law School in New York. "It's going to be hard to prove them guilty of specific criminal offenses. It will be difficult to prove specific war crimes. I'm afraid we will bend the rules of criminal law to convict these persons of crimes."

Moriarity said it would be much better to declare them POWs, a move that would allow the U.S. to detain them until the end of the current conflict. "That could be 20 years from now," he said.

Other analysts see the POW question as an easy one.

"There is a very sound argument that by virtue of the U.S. administration declaring war on Al Qaeda, the Taliban and terrorism in general, that those captured are subjects of an army on the opposing side and as such must be treated as POWs," said Grahame Warby, an international law expert in London.